Holding onto my hat

Thursday, February 11, 2016

On 22 December 2015, the High Court handed down a
judgment which clarified the legal effects of a police warning. Wham Kwok Han Jolovan v AG[1] ("Jolovan's case")
clarified that police warnings are merely expressions of opinion that the
recipients had committed an offence, but do not otherwise have any legal
effects on its recipients.

The judgment was the outcome of a Judicial Review
application by Jolovan Wham to quash (i.e. void) a police warning administered
to him. As the Court held that there was
no decision in the warning administered to Jolovan for the court to quash, the
Court dismissed Jolovan's application with costs.

On 1 February 2016, the High Court ordered Jolovan to
pay S$6,063 in costs to the Attorney-General ("AG") for his failed
court application. The amount was arrived at after discounting 20% off the
amount sought by the AG, to take into account aspects of the process by which
the warning was issued.

I am disappointed with the AG for seeking costs
against Jolovan and with the Court's decision to order Jolovan to pay S$6,063
in costs to the AG.

Before Jolovan’s Case

The practice of issuing warnings in lieu of
prosecution is not a creature of statute or regulated by legislation. Before
the decision in Jolovan's case, the implication of receiving a police warning
was mired with uncertainty.

In a seminal article by lawyer Tan Hee Joek "Be
Warned of the Stern Warning" published in the Law Gazette in 2013[2], the author said:

"...
local cases have shown that a stern warning may still be relevant in judicial
proceedings as a criminal antecedent for sentencing and for related civil
claims".

The author cited five reported cases in which the prosecution
had brought the accused’s prior warnings to the attention of the sentencing
judge. One of those cases was PP v
Tan Hiang Seng[3],
which I shall say more about. The author concluded that the five cases showed
that police warnings can have adverse effects for the recipients.

PP v Tan Hiang Seng

Of the five cases cited by Tan Hee Joek in his 2013
article, three of them were referred to by Justice Woo Bih Li, the judge in Jolovan's
case.

Of the three cases, Justice Woo found that in two of
them, the court did not actually take into account the previous warnings when sentencing
the accused. But Justice Woo agreed, and
AG conceded, that in PP v Tan Hiang Seng, the court certainly did take
into account a prior warning to the accused while considering the issue of
sentence. On this point, Justice Woo stated
in his judgment that a court is not entitled to treat a warning as an antecedent
or as an aggravating factor since it has no legal effect and is not binding on
the recipient.

I looked up the case of PP v Tan Hiang Seng.
In pressing for a custodial sentence, the prosecution in that case informed the
court that the accused had been given a stern warning for taking his mother’s
identity card without her permission. The judge in that case said in her
grounds for sentencing:

"...
the accused had taken his mother’s identity card without her permission. This
was itself an offence of theft. He was given a stern warning by the police for
this. I considered this an aggravating factor."

The judge sentenced the accused to 4 weeks'
imprisonment and a fine of $2,000.

PP v Tan Hiang Seng is a clear instance where
the court when sentencing an accused, had considered the fact that the accused
had been warned by the police to be an aggravating factor.

The AG can't run away from PP v Tan Hiang Seng.
Small wonder that in Jolovan's case, Justice
Woo noted:

“…
the AG submitted that it would be wrong for a court to take into account a
prior warning, whether as an antecedent or not, for the purpose of sentencing
and he stressed that the prosecution would not in future mention a prior
warning to a court for the purpose of enhancing a sentence."

Hence, the AG admitted that the prosecution’s
practice of informing the sentencing judge of prior warnings was wrong and that
they would stop doing that in future.

This means that the prosecution in PP v Tan Hiang
Seng (and in each of the 4 other cases cited by Tan Jee Joek) erred by
telling the court about the accused’s prior warning; and the judge in PP v
Tan Hiang Seng erred in considering that factor when sentencing the accused
in that case.

Looks like poor Mr Tan Hiang Seng's sentence was
unfairly enhanced. Now that Jolovan’s case has brought those mistakes out in
the light, is there justice for Mr Tan Hiang Seng? Would the AG take the
initiative to review Mr Tan Hiang Seng's sentencing? To right the wrong, to set
the record straight? Or is all that water under the bridge?

S$6,063 to the AG

Mr Tan Hiang Seng's case is long over, but Jolovan's
case is still live, as he has now been ordered to pay the AG the sum of S$6,063
for “failing" his court application.

As Tan Hee Joek’s article shows, before Jolovan's
case, there were concerns that police warnings could have adverse implications
for the recipients. Given the prevailing
legal opinion, we cannot fault Jolovan for being motivated to apply to Court to
quash the police warning.

Apart from uncertainty over the legal implications of
police warnings, the circumstances faced by Jolovan make the cost order imposed
him seem unfair.

Concerning Jolovan's visit to the police station on
25 March 2015, Justice Woo declared at paragraph 1 of his Judgment that
"it was not even clear whether a warning was administered". Jolovan asked for a copy of the Notice of
Warning, but his request was denied. Justice Woo also criticized the wording of
the Notice of Warning and called it "poorly drafted".

On 4 May 2015, Jolovan called the police to enquire
about the outcome of the investigations against him. The police told Jolovan
that a warning had been administered to him on 25 March 2015. When Jolovan
tried to engage them further, he was stone-walled. On 9 May 2015, Jolovan wrote
to the police and protested the issuance of a warning against him. He did not
receive a reply. On 23 May 2015, he wrote to the Attorney-General’s Chambers to
similarly protest the issuance of the warning against him. Again, he did not receive a reply. Jolovan then went ahead to file his
application for judicial review.

Let's step into Jolovan's shoes. How the police engaged Jolovan - the way he
received his warning and how he was subsequently stone-walled - left much to be
desired. In Singapore, we do not have
any independent commission or body which can bridge the gap between the police
and civilians at the receiving end of police actions. What else could someone in Jolovan's shoes
have done? Jolovan has no way to protest
the issuance to him of the warning. Jolovan's
only recourse was to seek the Court's help by applying for Judicial Review.

Unfortunately, Jolovan has now been penalised with a
cost order of S$6,063. The decision to impose the cost order sends the ominous signal
that Justice is only available to those who can afford it. Often, for someone aggrieved by a decision
made by a state agency, application to Court for Judicial Review is the only
recourse. If he wants to apply to Court
for Judicial Review, he had better make sure he has the requisite financial
means to see the application through. Jolovan's
experience shows that applying to court for help carries the risk of having to
pay costs to the AG.

Loser Pays

The legal basis for ordering costs against Jolovan is
the principle "costs follow the event". On this principle, the loser has to pay the
winner's legal costs. This principle works
well most of the time. But there is a strong case to suspend this principle
when the applicant is an aggrieved civilian seeking the Court's help against
the heavy hand of state action. Without
protection from adverse cost orders, no one will dare to complain against state
action, for fear of being slapped with cost orders in the event that the Court
upholds the decision taken by the state agency.

In Jolovan's case, the Court regarded him as having lost
his bid, and therefore he has to pay costs to the other side, which in his
case, is the AG. Had the AG decided not
to seek a cost order against Jolovan, there will be no issue of costs to
decide. For Jolovan's case, the AG in
their wisdom decided to seek costs from Jolovan. As to why the AG so decided, I do not know,
but they did.

But did Jolovan really "lose"? Jolovan's application was to quash the
warning he received. In the end, the Court decided that since police warnings are
not "decisions" but merely opinions, there was nothing to quash. The
logic being that the Court cannot quash something which cannot be quashed.

But wait - if there is nothing to quash, can it be
said that Jolovan's application to quash the police warning has failed? Jolovan’s case is not one in which the Court
upheld a decision, but one in which there was no decision to affirm or quash. But it seems that no decision to quash means
that Jolovan’s application has failed and his case is lost.

Public Interest

While Justice Woo has deemed Jolovan to have
"lost" his case, Jolovan has won for the general public a much-needed
clarification on the legal effects of police warnings. Justice Woo razed 20% off the amount sought
by AG, to take into account the AG’s various mis-steps. Justice Woo should have given Jolovan a much
higher discount to recognise the public interest elements in Jolovan's case.

The principle that the loser has to pay the winner's
legal costs should be suspended for someone in Jolovan's shoes, a civilian who has
no other avenue that to seek the court's help for his predicament. Jolovan’s case is an application for Judicial
Review by an individual who is aggrieved by a certain action taken by the
police against him. Such cases have a strong element of public interest as they
concern the interaction between individual rights and state powers.

In cases where there are strong public interest
elements, the civilian applicant should be given protection from adverse cost
orders. Such protective measures operate as safeguards against abuse of state powers. Without protection from costs, aggrieved individuals
on the receiving end of state actions, will be inhibited from bringing their
grievances to court, for fear of cost implications.

It should be noted that when an individual contends
with the state, it is a David vs Goliath scenario. The individual is handicapped by the limits
of his personal resources. The state has the armada of the AGC to avail of.

Appeal?

Jolovan is entitled to appeal against the S$6,063
cost order. But I can fully understand if
Jolovan decides not to appeal. For if Jolovan
appeals, he risks being slapped with a further cost order in the event that the
Court decides to uphold the S$6,063 costs order.

S$6,063 is already a lot of money for an individual
to fork out. To take on further exposure
to legal costs would be daunting. It
will certainly be safer for Jolovan to cough up the dough and be grateful for
the clarification given by the court that the warning he received has no legal
effect.

Jolovan’s case is a cautionary tale that Justice
comes with a price tag.

Saturday, January 9, 2016

The recently reported decision
of Wham Kwok Han Jolavan v Attorney-General[1] has
clarified that police warnings are “no
more than an expressions of the opinion of the relevant authority that the
recipient has committed an offence”.
As such, there is no decision for the Court to quash.

In his written judgment, the
Judge made the following points:

That a
warning is not binding on its recipient such that it affects his legal rights,
interests or liabilities.[2]

The fact that someone has received a warning from the police clearly has
adverse effects on its recipient.

Firstly, the opinion of the police carries significant weight. The Judge in Mr Wham’s case said that a
police warning does not and cannot amount to a legally binding pronouncement of
guilt or finding of fact. Only a court
of law has the power to make such a pronouncement of guilt or finding of
fact. Saying that a recipient of a
police warning is to be presumed innocent until found guilty by a court of law is
talking small potatoes compared with the heavyweight pronouncement of guilt bellowing
from the Attorney-General’s Chambers.

Secondly, the warning is on record.
How long it will stay on police record before it is considered spent or
expired is unclear. It is also a mystery
to what extent other parties (government or non-government) are able to access
such information. Disclosure of a
recipient’s police record to other agencies will cause the recipient to suffer privacy
intrusion, personal embarrassment and reputational harm.

If for example, the recipient is applying for a government scholarship
or public-sector job, will those who are deciding his scholarship or job
application have access to his police record?
If so, then the recipient’s scholarship or job prospects will be
affected.

On 11 May 2013, 21 Malaysians were arrested for gathering illegally at
Merlion Park. Concerning their fate, the media reported [4]:

"The Police
will be issuing conditional warnings to all 21 Malaysians who participated in
the illegal gathering at Merlion Park on 11 May. Their employers will be
informed of this. The authorities have also initiated the revocation of the
work pass of one of these 21 persons for being involved in both the 8 and 11
May illegal gatherings. In addition, the
authorities have cancelled the visit passes of another two of them. As for the
remaining 18 persons, their work passes will be reviewed upon completion of
further investigations."

Hence, it appears that a non-Singaporean who receives a warning in
lieu of prosecution will be at risk of losing his job, of having his work pass
revoked, visit passes cancelled or being repatriated. Those are dire
consequences for non-Singaporeans who are living and working in Singapore.

Making public announcements of warnings given

There have been many instances where authorities have issued press
releases to inform the public that certain individuals have been issued with a
police warning in lieu of prosecution. In some cases, the recipient of the warning is
named in the press release while in other cases, the recipient is unnamed.

A press release by the Singapore Police Force on 10 August 2011 stated
that the Police had administered a stern warning to Ms Tin Pei Ling’s unnamed
friend for her breach of the Parliamentary Elections Act.[5]

On 23 June 2013, the Attorney-General’s Chambers issued a press
release[6] to inform the public that
they had issued a letter of warning to Ms Lee Seng Lynn for her having
committed contempt of court.

Has the police an unfettered discretion to decide when they wish to
make public the names and circumstances of individuals who have been issued
with warnings? What about the unwanted
attention and public humiliation the recipient has to suffer?

When someone’s name enters the public domain on account of having been
found guilty of a crime by the Attorney-General, the reputational damage is
immeasurable and long-lasting. How are
recipients in such cases going to deal with the court of public opinion against
them? Such a recipient pays a heavy personal price even though he has not been
convicted by a court of law.

So even though the Judge in Mr Wham’s case said that a warning is not
binding on its recipient such that it affects his legal rights, interests or
liabilities, clearly the issuance of a warning can cause permanent and
persistent prejudice to the recipient.

Recipients have no remedy against warnings

The Judge in Mr Wham’s case said that the recipient is entitled to
challenge the warning. He suggested that Mr Wham could have sent a letter to
the police to say that he disputes that he has committed an offence and that
the warning is inappropriate.[7] In fact, Mr Wham did write to the police and also
to the Attorney-General’s Chambers to protest the issuance of the warning
against him, but the police and the AGC never replied him.[8]

What good will it do for the recipient to write to the police to
object the issuance of the warning?

Of what the weight is the recipient’s opinion that he has not
committed any offence to warrant the warning compared with the weight of police
opinion that the recipient has committed an offence?

In any case, the decision in Mr Wham’s case is that a police warning
cannot be quashed by the Court.

All said, I am not sure I understand why the Judge said that the
recipient is entitled to challenge the warning because the recipient has no
recourse to the Court and in practical terms, there is little he can do at his
end to mitigate the adverse effects of receiving a police warning.

How are individuals safeguarded from wrongful issuance of warnings?

The police wield considerable powers over the individual. How the police
administers its powers on individuals and what are the safeguards against unprincipled
exercise of police powers on individuals are a matters of great importance to
the general public.

For when the lone individual is at the receiving end of the strong arm
of the law bearing down on him, we need to entrust him to the integrity of the
system and to have faith that the machinery will be applied to him in a
principled manner.

If individuals lack adequate protection from and recourses against
arbitrary exercise of police powers, the relationship between rulers and the
ruled will be strained and eventually the justice system will break down.

Present Situation

In respect of warnings, the following applies for now:

Warnings can be given only orally, without the
need for any formal document to be issued.

The warning may be given without requiring the
recipient's consent to being warned.

The warning may be given whether or not the recipient's
admits to having committed the crime.

Once given, a warning cannot be quashed by the
Court.

The warning is on record, but for how long the
record is kept by the police before it is considered spent or expired is not
known.

When, how and to what extent the police shares the
recipient’s record with other agencies is not known.

As to what control, if any, the recipient has
over what the police does with his record is not known.

When announcing to the public the fact that some
has received a warning, the police may, as it deems fit, disclose the name of
the recipient, the circumstances of the case and any other details.

Whether and to what extent the police needs to
consider the recipient’s personal detriment arising from the publication of his
name is not known.

An unsatisfactory ending

The judgment in Mr Wham’s case is like a story which has a beginning,
a middle but no ending. We are left hanging
at the cliff’s edge.

The Court says that warnings have no legal effects, but warnings are
prejudicial to its recipients. The police
is empowered to issue warnings, which the recipient is powerless to do anything
about.

I dearly hope that the decision in Mr Wham’s case is not the Court’s
last word on the matter of police warnings.
There is still a lot of plot holes to clear up, you know. And if the Court is not going to plug the
gaps, I am not sure who will.

Thursday, January 7, 2016

The recently reported decision of Wham Kwok Han
Jolovan v Attorney-General[1] is intriguing in more ways than one.

The case has received public attention for its clarification
on the legal effects of police warnings – that they are “no more than an
expressions of the opinion of the relevant authority that the recipient has
committed an offence”. [2]

But the written judgment of this case by Justice Woo
Bih Li is also significant for its critique on how the warning was administered
to the recipient in the case. The Judge
shone the spotlight on how the police treated the recipient of the warning - and
the police did not come up smelling like a rose.

This is a side of the reported decision which not
only opens the lid on police processes, but also makes a fascinating story.

It should be noted at the onset that this is not your
run-of-the-mill criminal case. This case
concerns an offence which cannot be committed anywhere on the island of
Singapore except at Speakers' Corner in Hong Lim Park. The recipient of the
police warning in this case was a Singapore citizen who was exercising his
constitutional rights. The context of
the case being in the lofty realms of police constraints on civil activity, it adds
a special flavour to the story which the Judge unfolds.

Background - what the case is about

On 1 October 2014, Mr Jolovan Wham organised an event
at Speakers' Corner. The publicity for event expressly stated that foreigners
and permanent residents required a permit in order to participate in the event.
At the start of the event, Mr Wham also informed the participants that only
Singapore citizens were allowed to participate.

After the event, the Central Police Division (CPD)
commenced investigations against Mr Wham as CPD officers had observed that
there were participants that appeared to be foreigners. Subsequently, the
Attorney-General decided to direct the CPD to issue a warning to Mr Wham to
refrain from conduct amounting to an offence under the Public Order
(Unrestricted Area) Order 2013 [3] or any other criminal conduct
in the future, instead of charging Mr Wham.

On 25 March 2015 at the CPD Headquarters, Mr Wham was
verbally warned as directed by the Attorney-General.

Believing that he had done nothing wrong to warrant a
warning, Mr Wham applied to Court to challenge the warning given.

Judge unsure whether there was even any warning
given

Right at paragraph one of his judgment, the Judge
declared it was not even clear whether any warning was given at all.

The Judge then went on to scrutinise what transpired
between DSP Pannirselvam (the CPD Officer) and Mr Wham, which may be summarised
as follows:

On 25
March 2015, Mr Wham met the CPD Officer at the CPD Headquarters.

The CPD
Officer administered Mr Wham with an oral warning and then invited Mr Wham to
sign a document called "Notice of Warning" to acknowledge that he had
received the document.

Mr
Wham refused to sign the Notice of Warning.

Mr Wham
informed the CPD Officer that he wanted to consult his lawyers and requested a
copy of the Notice of Warning.

The
CPD Officer refused to give Mr Wham a copy of the Notice of Warning.

The CPD
Officer then made a handwritten note on his paper that "No copies of
the warning was issued to him."

On 4 May
2015, Mr Wham contacted CPD to enquire about the outcome of the investigations
against him.

On 5 May
2015, CPD sent a letter to Mr Wham stating that it had been placed on CPD’s
record that Mr Wham was “warned by … DSP S Pannirselvam on 25 March 2015".

The Judge having laid out the sequence of events, it
becomes evident to the casual observer that the way the CPD dealt with Mr Wham
was ambiguous and inconsistent.

Did the CPD intend to administer the warning to Mr
Wham orally or in written form?

How the CPD intended to administer the warning to Mr
Wham was not clear.

Handwritten notes on the Notice of Warning stated
"No copies of the warning was issued to him."

According to the Judge, if it was the intention of
CPD was to administer the warning orally, then the wording of the Notice of
Warning was inconsistent because it stated "You are hereby warned",
and not "you have been warned" and that a stern warning “would
be administered”, and not “has been administered”.[4]

The Judge also noted that DSP Pannirselvam's
handwritten notes stated "No copies of the warning was issued to him",
which seemed to indicate that he was treating the Notice of Warning as the
warning itself. [5]

The Judge commented: "If indeed CPD had
intended all along for DSP Pannirselvam to administer a warning orally followed
by a notice that the oral warning had been administered, then the Notice of
Warning was poorly drafted." [6]

The Notice of Warning was poorly drafted in more ways
than one. The Judge pointed out that the
Notice of Warning had no date and that it carelessly used the terms “warning”
and “stern warning” interchangeably.

The Judge suggested: "However, when the
Notice of Warning was not handed to Mr Wham because he had said he wanted to
consult a lawyer, there was a problem as to whether a warning had been
administered to Mr Wham at all. Perhaps it was because of this problem that the
position was then taken by CPD that an oral warning had already been issued."[7]

Then, there is also the mystery as to why the CPD
officer refused Mr Wham’s request for a copy of the Notice of Warning. On this point, the Judge thought that CPD
officer should not have withheld it from Mr Wham.

The Judge said: "It seems to me that if CPD’s
intention was to hand over a copy of the Notice of Warning to Mr Wham after the
warning had been administered, then DSP Pannirselvam should have handed over a
copy even though Mr Wham chose not to sign the acknowledgement.…… Furthermore,
it is not illogical for someone who is informed about a warning of an offence
to want to seek legal advice before signing any document pertaining to the
warning."[8]

Notably, the Judge vindicated Mr Wham’s wish to
consult a lawyer before signing any document.

AGC’s Acknowledgement of Remiss

Clearly, there was needless inconsistency and
ambiguity in the way the CPD conducted its proceedings with Mr Wham.

In what appears to be an acknowledgment of their
remiss, the Attorney-General’s Chambers told the media: "The
Attorney-General’s Chambers and the Singapore Police Force are reviewing the
process by which stern warnings are administered and the use of the notice, in
the light of the High Court's comments in the judgment." [9]

The Judge’s relentless scrutiny of how the CPD dealt
with Mr Wham revealed much to be desired of police processes, at least in the
area of administering warnings.

The Straits Times headlined their report on the
Court’s decision as “Activist fails to get police warning quashed”.

Perhaps in an alternative universe would we see the
Straits Times using this as the headline instead: “Judge finds fault with
how police warned activist”.

[3] Paragraph 4(1)(b) which provides
that an organiser of any demonstration held in Speakers’ Corner must not allow
any person who is neither a Singapore citizen nor a permanent resident to take
part in the demonstration.

About Me

Jeannette Chong-Aruldoss is a practising lawyer who earned her law degree in the United Kingdom. She also holds a Masters Degree in Corporate & Commercial Law from the London School of Economics & Political Science and was called to the English Bar in 1986.
Jeannette is happily married and a mother of four children.
She challenged the incumbent at Mountbatten SMC in Singapore's 2011 General Elections and garnered 41.38% of the votes cast.